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Kishor Krishna.S vs State Of Kerala on 9 December, 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

MONDAY, THE 09TH DAY OF DECEMBER 2019 / 18TH AGRAHAYANA,
1941

WP(C).No.25693 OF 2019(J)

PETITIONER:
KISHOR KRISHNA.S
AGED 32 YEARS
S/O.SASIDHARAN, RESIDING AT KISHOR BHAVAN,
KUDAVATOOR.P.O, KOTTARAKKARA, KOLLAM DISTRICT

BY ADV. SRI.N.SUNIL JOSEPH

RESPONDENTS:

1 STATE OF KERALA
REPRESENTED BY SECRETARY TO THE GOVERNMENT
DEPARTMENT OF WOMEN AND CHILD DEVELOPMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM
PIN-695001

2 CHILD WELFARE COMMITTEE KOLLAM DISTRICT,
GOVERNMENT CHILDREN’S HOME, BEACH ROAD,
KOLLAM, PIN 691001 REPRESENTED BY ITS CHAIRMAN

3 SHYMA RAJ
SHIMA VILASAM, VAKKANAD.P.O, NEDUMONCAVU,
KOLLAM, KOLLAM DISTRICT, PIN 691509

4 ADDL R4
THE STATION HOUSE OFFICER,
POOYAPALLY POLICE STATION, POOYAPALLY (PO),
KOLLAM DISTRICT, PIN – 691537

ADDL R4 IMPLEADED AS PER ORDER DATED
11/10/2019 IN IA 1/9 IN WP(C)25693/19

R1,R2 R4 BY ADV.SRI.VINOD, GOVERNMENT
PLEADER
R3 BY ADV. SRI.ALEXANDER GEORGE

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 09.12.2019, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
P.B.SURESH KUMAR, J.
———————————————–
W.P.(C) No.25693 of 2019
———————————————–
Dated this the 9th day of December, 2019

JUDGMENT

Ext.P3 order passed by the second respondent, the

Child Welfare Committee (CWC) constituted under Section 27 of

the Juvenile Justice (Care and SectionProtection of Children) Act, 2017

(the Act) for Kollam District, is under challenge in the writ

petition.

2. The facts relevant as discernible from the

materials on record are the following. The petitioner is the

father of a girl child aged 5 years. The third respondent is the

mother of the child. The relationship between the petitioner and

the third respondent is estranged and they are living separately.

The third respondent has also instituted a proceedings before

the Family Court, Kottarakkara, against the petitioner, for

dissolution of her marriage with the petitioner on various

grounds, and the same is pending. The child has been with the

petitioner ever since the third respondent left the company of
W.P.(C) No.25693 of 2019
3

the petitioner. On 17.09.2019, the third respondent preferred a

complaint before the CWC seeking appropriate orders for the

custody of the child, stating among others, that the petitioner is

an alcoholic; that the child needs the care and protection of the

mother; that the child wants to live with her and that she is

prevented from taking custody of the child. Notice was issued

to the petitioner by CWC on the said complaint and when the

petitioner appeared before the CWC on 18.09.2019 on notice,

he was directed to produce the child before the CWC on

19.09.2019. On 19.09.2019, the petitioner appeared before the

CWC again with the child. On 19.09.2019, after hearing both the

petitioner and the third respondent, the CWC called for a social

investigation report and the child was sent back with the

petitioner. Thereupon, the CWC received the social

investigation report to the effect that the child wished to stay

with her mother. On receipt of the said report, in terms of

Ext.P3 order, the CWC directed the petitioner to appear before

them with the child on 26.09.2019. On 26.09.2019, as the

petitioner did not produce the child, the Station House Officer
W.P.(C) No.25693 of 2019
4

concerned was directed to produce the child before the CWC on

27.09.2019. The Station House Officer of the concerned police

station has not produced the child before the CWC on

27.09.2019 as directed. In the circumstances, on 27.09.2019,

the CWC has revoked its earlier order granting custody of the

child to the petitioner and directed the Station House Officer

concerned to take custody of the child from the petitioner and

entrust the child to the custody of the third respondent.

3. In the meanwhile, this writ petition was

instituted by the petitioner on the ground mainly that the child

involved in the matter is not a child in need of care and

protection, as defined under Section 2(14) of the Act and the

CWC has, therefore, no jurisdiction to continue the proceedings.

On 26.09.2019, this court stayed further proceedings pursuant

to Ext.P3 for ten days. In the light of the said interim order, the

order dated 27.9.2019 was not enforced.

4. One of these days, it was submitted by the

counsel for the petitioner, that though he had filed a memo for

bringing up the matter for extension of the interim order dated
W.P.(C) No.25693 of 2019
5

26.9.2019, the matter was not listed. The matter was

thereafter listed for hearing on 11.10.2019, on which day the

interim order was extended till 15.10.2019. Though the matter

was listed on a few days thereafter at the instance of the

learned counsel for the petitioner, the same could not be taken

up for want of time. On 28.10.2019, it was pointed out by the

learned counsel for the petitioner that ignoring the interim

order passed by this court, the CWC passed Ext.P6 order on

9.10.2019 directing the Station House Officer concerned to take

custody of the child and produce the child before the CWC on

the same day itself on the premise that the period of the

interim order passed by this court in this matter had expired. It

was also pointed out by the learned counsel that when the child

was produced before the CWC in execution of Ext.P6 order,

CWC directed the child along with her mother to be admitted in

a shelter home. In the light of the said submissions made by the

learned counsel for the petitioner, the Chairman of the CWC

was directed to file an affidavit before this court explaining as

to how despite the interim order passed by this court on
W.P.(C) No.25693 of 2019
6

26.09.2019, the custody of the child was caused to be taken

from the father. The file relating to the entire proceedings of

the second respondent was also directed to be produced.

5. On 1.11.2019, when the matter was taken up,

the file of the proceedings before the CWC was made available.

A copy of the affidavit stated to have been filed before this

court in terms of the direction issued by this court on

28.10.2019, was also made available to the court as the original

of the affidavit was not found on the file. The learned counsel

for the petitioner as also the learned Government Pleader were

heard on that day.

6. The registry reports that the original of the

affidavit handed over to the court at the time of hearing was

though taken back by the office of the Advocate General for

curing the defects noted therein, the same was not resubmitted

after curing the defects. In the circumstances, the copy of the

affidavit handed over to the court which contains the duly

attested signature of the Chairman of the CWC has been taken

to file.

W.P.(C) No.25693 of 2019
7

7. The file made available indicates that the child

is stated to have disclosed to the Counsellor attached to the

shelter home on 9.10.2019, on being sent over to the shelter

home by the CWC pursuant to Ext.P6 order, that she was

abused sexually by the uncle of the petitioner named therein. It

is also seen that she was thereafter taken for medical

examination to the hospital and a crime was registered against

the uncle of the petitioner under Sections 376(2)(f), Section376(2)(i) of

the Indian Penal Code and Sections 3(a), Section3(b), Section4, Section5(m), Section5(n) and

Section6 of the Protection of Children from Sexual Offences Act, 2012.

8. The learned counsel for the petitioner forcefully

contended that the child involved in this matter is not a child in

need of care and protection as defined under Section 2(14) of

the Act and the CWC has, therefore, no jurisdiction to decide

the question relating to the custody of such a child. According

to the learned counsel, it is a case where the third respondent

should have approached the Family Court for custody of the

child and the entire proceedings of the CWC is an abuse of the

provisions of the Act. It was also pointed out by the learned
W.P.(C) No.25693 of 2019
8

counsel for the petitioner that at any rate, it is highly

inappropriate for the CWC to have ignored the proceedings

before this court and passed Ext.P6 order removing the custody

of the child from the petitioner and entrusting her custody to

the third respondent which is against the spirit of the interim

order passed by this court. It was also contended by the learned

counsel for the petitioner that a false complaint was obtained

by the CWC from the third respondent stating that the child is

being sexually abused by the uncle of the petitioner and kept in

the file after Ext.P6 order, to justify the said order during the

pendency of this writ petition. It was also pointed out by the

learned counsel that it is to justify the lodging of such a

complaint that the child was made to say that she was abused

by the uncle of the petitioner before the counsellor attached to

the shelter home. It was also pointed out by the learned counsel

for the petitioner that it is at the instance of the CWC that a

case has been registered against the uncle of the petitioner.

According to the learned counsel, the said case is a false case.

9. Per Contra, the learned Government Pleader
W.P.(C) No.25693 of 2019
9

submitted that the child involved in this matter would certainly

fall within the scope of the definition `Child in need of care and

protection’ and that the CWC cannot, therefore, be found fault

with for entertaining the complaint of the third respondent. It

was also pointed out by the learned Government Pleader that

Ext.P6 order was passed since the CWC has received a

complaint from the mother of the child in the meanwhile that

the child is being sexually abused and it was, therefore, felt that

the child has to be removed from the custody of the father to

prevent further abuse of the child.

10. The following are the questions arising for

consideration in the matter :

(1) Whether the CWC was justified in initiating

proceedings in respect of the custody of the child involved in

this matter under the Act on the basis of the complaint lodged

by the third respondent?

(2) Whether the CWC was justified in passing

Ext.P6 order when the writ petition challenging Ext.P3 order was
W.P.(C) No.25693 of 2019
10

pending before this court?

11. It is beyond dispute that the CWC gets

jurisdiction to decide questions relating to the custody of a

child only if the child is a child in conflict with law or the child is

a child in need of care and protection as defined under Sections

2(13) and Section2(14) of the Act. In all other cases, the issues

relating to custody are to be decided by the Family Court

exercising powers under the Guardians and SectionWards Act. In the

case on hand, it is beyond dispute that the CWC was

proceeding as if the child involved is a child in need of care and

protection. The question to be seen, therefore, is as to whether

the child involved is a child in need of care and protection.

Section 2(14) of the Act defines “child in need of care and

protection” thus:

(14) “child in need of care and protection” means a child-

i) who is found without any home or settled place of
abode and without any ostensible means of subsistence;

or

(ii) who is found working in contravention of labour
laws for the time being in force or is found begging, or
living on the street; or

(iii) who resides with a person (whether a guardian
W.P.(C) No.25693 of 2019
11

of the child or not) and such person –

(a) has injured, exploited, abused or neglected the
child or has violated any other law for the time being in
force meant for the protection of child; or

(b) has threatened to kill, injure, exploit or abuse
the child and there is a reasonable likelihood of the threat
being carried out; or

(c) has killed, abused, neglected or exploited
some other child or children and there is a reasonable
likelihood of the child in question being killed, abused,
exploited or neglected by that person; or

(iv) who is mentally ill or mentally or physically
challenged or suffering from terminal or incurable disease,
having no one to support or look after or having parents or
guardians unfit to take care, if found so by the Board or
the Committee; or

(v) who has a parent or guardian and such parent or
guardian is found to be unfit or incapacitated, by the
Committee or the Board, to care for and protect the safety
and well-being of the child; or

(vi) who does not have parents and no one is willing
to take care of, or whose parents have abandoned or
surrendered him; or

(vii) who is missing or run away child, or whose
parents cannot be found after making reasonable inquiry
in such manner as may be prescribed; or

(viii) who has been or is being or is likely to be
abused, tortured or exploited for the purpose of sexual
abuse or illegal acts; or

(ix) who is found vulnerable and is likely to be
inducted into drug abuse or trafficking; or
W.P.(C) No.25693 of 2019
12

(x) who is being or is likely to be abused for
unconscionable gains; or

(xi) who is victim of or affected by any armed
conflict, civil unrest or natural calamity; or

(xii) who is at imminent risk of marriage before
attaining the age of marriage and whose parents, family
members, guardian and any other persons are likely to be
responsible for solemnisation of such marriage;
Ext.R2(a) is the complaint preferred by the third respondent

before the CWC. The essence of the complaint of the third

respondent is that the petitioner is an alcoholic; that the child

needs the care and protection of the mother; that the child

wants to live with her and that she is prevented from taking

custody of the child. According to me, on the basis of Ext.R2(a)

complaint, the CWC was not justified at all in initiating

proceedings under the Act and as rightly pointed out in the writ

petition, the dispute raised was only a dispute between the

estranged spouses in a failed marriage for custody of their child

which should have been dealt with by the Family Court under the

Guardians and SectionWards Act. Question (1) is answered accordingly.

12. In the affidavit filed by the Chairman in charge

of the CWC, it is stated that the third respondent has filed a
W.P.(C) No.25693 of 2019
13

complaint on 26.09.2019 alleging that the child was subjected

to sexual abuse. A copy of the complaint was produced along

with the affidavit as Annexure R2(f). It is also stated in the

affidavit that the order dated 09.10.2019 was passed in the

best interest of the child as it was found that the child was

required to be rescued from being sexually exploited. It is

admitted in the affidavit that a case has been registered

against the uncle of the petitioner as instructed by the CWC.

Paragraphs 7 to 9 of the affidavit read thus:

7. The Social investigation reports stated that
the allegations stated by the writ petitioner false. The writ
petitioner was directed to produce the child on 26.09.2019,
on which day he did not produce the child. On that day
another complaint was received from Shyma Raj that her
child was subjected to abuse. A true copy of the complaint
dated 26.09.2019 is produced herewith and may be
marked Annexure R2(f). On 27.09.2019 the order
directing to defer the proceedings was received. The
direction was to defer by 10 days, the order dated
26.09.2019. The Child Welfare Committee posted the case
on 09.10.2019.

8. In the Writ Petition, many material facts are
suppressed. The Child Welfare Committee adjourned the
case to 09.10.2019. As on 09.10.2019, the Child Welfare
Committee in order to protect the best interest of the child
W.P.(C) No.25693 of 2019
14

directed the child along with its mother to be admitted to
QSS Shelter Home. The Child Welfare Committee
considered it emergent to rescue the child from being
sexually exploited. The Committee considered it their
statutory duty more so in the absence of any interdiction
to proceed with the statutory function entrusted to it.

9. On 10.10.2019 the child was subjected to
medical examination, tenderness of the private part of the
five year old girl child was observed by the Doctor. A true
copy of the Medical Record of the Government Victoria
Hospital, Kollam is produced herewith and marked as
Annexure R2(g). In Annexure R2(g) the Government
Doctor has concluded that there is no evidence of vaginal
penetration but there is tenderness over the vaginal
area”.Upon such medical report. and Annexure R2(i), case
was directed to be registered against the accused by
telephonic message. Any public servant when has
knowledge about the Commission of a cognizable offence
is obliged to report to the Police Officers. A true copy of the
FIR in Crime No. 1660/2019 of Pooyappally Police Station is
produced herewith and marked as Annexure R2(h).”
The explanation offered for having passed Ext.P6 order, even

when the matter was seized of by this court is, therefore, the

complaint stated to have been preferred by the third

respondent on 26.09.2019. In so far as the matter was seized of

by this court, even assuming that a complaint in the nature of

one referred to in the affidavit is received by the CWC
W.P.(C) No.25693 of 2019
15

warranting immediate action, and even assuming that the

interim order passed by this court was not technically in force,

according to me, it was inappropriate for the CWC to pass an

order in the nature of Ext.P6. The CWC was obliged to bring the

circumstances in the nature of the alleged complaint, to the

notice of this court and orders in the nature of Ext.P6 are

certainly contrary to the discipline which bodies like CWC are

bound to follow in the fitness of things to uphold the majesty of

judicial institutions.

13. Be that as it may. It is seen from the materials

on record as also from the file of the CWC which was made

available that the orders passed by the CWC on 26.09.2019,

27.09.2019 and 09.10.2019 do not refer to the complaint stated

to have been preferred by the third respondent on 26.09.2019.

Those orders only refer to the social investigation reports dated

23.09.2019 and the report of the counsellor attached to the

CWC. The aforesaid reports prepared after interacting with the

child do not also say anything about the sexual abuse. If the

complaint of the third respondent stated to have been preferred
W.P.(C) No.25693 of 2019
16

on 26.09.2019 was one actually preferred on 26.09.2019,

having regard to its contents, the same would have been

certainly referred to in the orders dated 26.09.2019, 27.09.2019

and 09.10.2019. As noted, the complaint is not referred to in

any of the said orders. Further, the original of Ext.R2(f) which is

made available indicates that though it contains an

endorsement purported to have been made on 26.09.2019, the

date in the second page of the complaint is seen corrected by

overwriting. It refers to the interim order passed by this court in

this matter on 26.09.2019 and its expiry. Going by the contents

of the complaint, the same can never be one filed on

26.9.2019. As the complaint is not one referred to in any of the

orders passed upto 9/10/2019, same can only be a complaint, if

at all received from the third respondent, after 9/10/2019. The

endorsement in the complaint as available in the file of the

CWC to indicate its receipt is therefore, prima facie, a false

endorsement. In the light of the said finding, it has to be held

that even the statement in the affidavit filed by the Chairman of

the CWC that the complaint has been received by the CWC on
W.P.(C) No.25693 of 2019
17

26.9.2019 is also a false statement. Similarly the statement in

the affidavit that Ext.P6 order was passed with a view to rescue

the child in the light of the complaint allegedly filed by the third

respondent on 26.9.2019 is also a false statement, as prima

facie the complaint alleging sexual abuse is found to have been

received only after 9/10/2019. If that be so, there was

absolutely no justification for the CWC to issue an order in the

nature of Exhibit P6 on 9/10/2019. Question (2) is answered

accordingly.

14. Even though it is found that the complaint

lodged by the third respondent was not one that should have

been entertained by the CWC and that the CWC ought not have

passed the order dated 9.10.2019, in so far as it has come out

that a case is registered against the uncle of the petitioner

alleging that he has sexually abused the child having regard to

the circumstances in which she is placed, I do not think that

the custody of the child can be entrusted back to the petitioner.

In the peculiar facts of this case, I am of the view that the

mother of the child can be permitted to have the custody of the
W.P.(C) No.25693 of 2019
18

child subject, of course, to the right of the petitioner to move

the Family Court for appropriate orders for the custody of the

child.

In the result, the writ petition is disposed of and the

proceedings initiated by the CWC on the basis of Ext.R2(a)

complaint, and all actions taken thereto are quashed. However,

the third respondent is permitted to keep the custody of the

child subject to the right of the petitioner to move the Family

Court for custody under the Guardians and SectionWards Act. It is

made clear that if any proceedings is instituted by the

petitioner before the concerned Family Court, that court shall

take a decision as regards the custody of the child having

regard to the facts disclosed in this matter as also the

developments in the investigation of the crime registered

against the uncle of the petitioner at the instance of the CWC.

The Registrar, Vigilance of this court is directed to conduct a

preliminary enquiry into the offences referred to in clause (b) of

sub section (1) of Section 195 of the Code of Criminal

Procedure, if any committed, or in relation to this proceedings
W.P.(C) No.25693 of 2019
19

and submit a report as provided for under Section 340 of the

Code of Criminal Procedure. The proceedings would be deemed

to be pending for the limited purpose of further action under

Section 340 of the Code.

Sd/-

P.B.SURESH KUMAR

Mn JUDGE
W.P.(C) No.25693 of 2019
20

APPENDIX
PETITIONER’S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE OBJECTION DATED 22.09.2019
OF THE PETITIONER

EXHIBIT P2 TRUE COPY OF THE LETTER DT.24.09.2019
ISSUED FROM THE L.P.G.S ENGLISH MEDIUM
SCHOOL, VELIYAM, KOTTARAKKARA

EXHIBIT P3 TRUE COPY OF THE PROCEEDING

NO.CWC/KLM/6524/2019 DT 23.09.2019 OF THE
SECOND RESPONDENT

EXHIBIT P4 TRUE COPY OF THE COMPLAINT DATED 09.10.2019

EXHIBIT P5 TRUE COPY OF THE RECEIPT DATED 09.10.2019
ISSUED FROM THE POOYAPPALY POLICE STATION

EXHIBIT P6 TRUE COPY OF THE ORDER NO.CWC/KLM/6524/19
DATED 09.10.2019 OF THE SECOND RESPONDENT

RESPONDENTS’ EXHIBITS:

EXHIBIT R2(a) A TRUE COPY OF THE COMPLAINT DATED
17.09.2019.

EXHIBIT R2(b) A TRUE COPY OF THE OBJECTION DATED
19.09.2019

EXHIBIT R2(c) TRUE COPY OF THE REPORT DATED NIL
SUBMITTED ON 19.09.2019 OF THE COUNCILOR
ATTACHED TO THE CHILD WELFARE COMMITTEE

EXHIBIT R2(d) TRUE COPY OF THE SOCIAL INVESTIGATION
REPORT SUBMITTED BY BINU GEORGE, CO-

ORDINATOR CHILD LINE SUB-CENTER, KOLLAM

EXHIBIT R2(e) TRUE COPY OF THE SOCIAL INVESTIGATION
REPORT SUBMITTED BY JESSY THOMAS, CHILD
RESCUE OFFICER, CHILD LINE RURAL
W.P.(C) No.25693 of 2019
21

EXHIBIT R2(f) TRUE COPY OF THE COMPLAINT DATED
26.09.2019

EXHIBIT R2(g) TRUE COPY OF THE MEDICAL RECORD OF THE
GOVERNMENT VICTORIA HOSPITAL, KOLLAM

EXHIBIT R2(h) TRUE COPY OF THE FIR IN CRIME NO.

1660/2019 OF POOYAPPALLY POLICE STATION

EXHIBIT R2(j) TRUE COPY OF THE TRANSCRIPT OF THE
INTERVIEW DATED 13.10.2019
//TRUE COPY//
PA TO JUDGE

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